Opinion
10-05-2017
The PEOPLE of the State of New York, Respondent, v. Joseph WHITE, Appellant.
Barrett D. Mack, Albany, for appellant, and appellant pro se. Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of Counsel), for respondent.
Barrett D. Mack, Albany, for appellant, and appellant pro se.
Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of Counsel), for respondent.
Before: GARRY, J.P., EGAN JR., LYNCH, AARONS and PRITZKER, JJ.
AARONS, J.After a confidential informant made controlled purchases of cocaine at defendant's residence, a search warrant was executed at the residence that reportedly disclosed, among other things, a quantity of cocaine and a loaded semi-automatic handgun. Defendant was subsequently charged in a five-count indictment with crimes related to the possession of the handgun and drugs. County Court thereafter denied defendant's motion to suppress the evidence based upon, among other grounds, claimed defects in the search warrant and denied the request for a Mapp/Dunaway hearing, finding that the search warrant was supported by probable cause and was not overly broad. In satisfaction of the charges, defendant pleaded guilty to the reduced crime of attempted criminal possession of a weapon in the second degree under count 1 and to criminal possession of a controlled substance in the third degree under count 3. Pursuant to the plea agreement, defendant waived his right to appeal and was sentenced, as an admitted second felony offender, to an aggregate prison term of 6 ½ years with five years of postrelease supervision. Defendant now appeals.
We affirm. As an initial matter, contrary to defendant's claim, we find that his combined oral and written waiver of appeal was knowing, voluntary and intelligent (see People v. Sanders, 25 N.Y.3d 337, 339–341, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Hall, 147 A.D.3d 1151, 1151, 47 N.Y.S.3d 147 [2017], lv. denied 29 N.Y.3d 1080, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2017] ). To that end, defendant was advised that an appeal waiver was a condition of the plea agreement and of its separate and distinct nature, and indicated that he agreed to and understood it (see People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Then, after consulting with his attorney off the record to review the written appeal waiver, which outlined his appeal rights and the consequences of the waiver, defendant and his attorney executed it in open court (see People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Toledo, 144 A.D.3d 1332, 1333, 40 N.Y.S.3d 680 [2016], lv. denied 29 N.Y.3d 1001, 57 N.Y.S.3d 723, 80 N.E.3d 416 [2017] ). Given defendant's valid appeal waiver, his challenge to County Court's adverse suppression decision and the denial of a hearing is precluded (see People v. Sanders, 25 N.Y.3d at 342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 [1999] ; People v. Payne, 148 A.D.3d 1226, 1227, 49 N.Y.S.3d 761 [2017], lv. denied 29 N.Y.3d 1084, ––– N.Y.S.3d ––––, –––N.E.3d –––– [2017] ). In that regard, the written waiver of appeal also expressly advised defendant that he was waiving all decisions, suppression hearings and rulings that had been made by the court and, during the plea allocution, he expressly withdrew all motions, further establishing that he had expressly and knowingly waived those claims (see People v. Kemp, 94 N.Y.2d at 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 ; People v. Zippo, 136 A.D.3d 1222, 1222–1223, 25 N.Y.S.3d 729 [2016], lv. denied 27 N.Y.3d 1141, 39 N.Y.S.3d 124, 61 N.E.3d 523 [2016] ).
While defendant's challenge to his plea as involuntary survives the appeal waiver, it was not preserved by an appropriate postallocution motion despite an opportunity to do so (see CPL 220.60[3] ), and defendant made no statements during the plea colloquy that triggered the exception to the preservation requirement (see People v. Williams, 27 N.Y.3d 212, 214, 219–222, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] ; People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Hall, 147 A.D.3d at 1152, 47 N.Y.S.3d 147). We have reviewed defendant's remaining contentions, including those raised in his pro se briefs, and conclude that they lack merit.
ORDERED that the judgment is affirmed.
GARRY, J.P., EGAN JR., LYNCH and PRITZKER, JJ., concur.